Burial and Cremation (Cremation) Regulations 2012

Burial and Cremation (Cremation) Regulations 2012

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Burial and Cremation Act 2002 .

PETER G. UNDERWOOD

Governor

By His Excellency's Command,

BRYAN GREEN

Minister for Local Government

PART 1 - Preliminary

1.   Short title

These regulations may be cited as the Burial and Cremation (Cremation) Regulations 2012 .

2.   Commencement

These regulations take effect on 26 June 2012.

3.   Interpretation

(1)  In these regulations –

Act means the Burial and Cremation Act 2002 ;

coffin means a box, case, or other receptacle, designed for, and into which, human remains are placed for storage, movement, cremation or interment;

coroner means coroner within the meaning of the Coroners Act 1995 ;

coroner's certificate means a certificate issued by a coroner in accordance with section 32 of the Coroners Act 1995 ;

cremation permit means a permit authorising cremation issued and in force in accordance with Part 2 ;

deceased person includes a part of the body of a deceased person;

Director of Local Government means Director as defined in the Local Government Act 1993 ;

implanted medical device means a medical device implanted in a person that may cause an explosion if the body of that person, when deceased, is cremated, including but not limited to any of the following:

(a) a battery;

(b) radioactive material;

(c) a cardiac pacemaker;

medical certificate means –

(a) a certificate certifying the cause of a person's death, given by a medical practitioner under section 35(3) of the Births, Deaths and Marriages Registration Act 1999 ; or

(b) a notice or certificate that is issued and is in force under a law of the Commonwealth, another State, a Territory or any other place outside this State that corresponds to a certificate of the kind specified in paragraph (a) ;

personal representative includes –

(a) the executor of the will of the deceased person; and

(b) the administrator of the deceased person's estate; and

(c) the Public Trustee as defined in the Public Trustee Act 1930 ; and

(d) a person nominated by the coroner, under subregulation (3) , as senior next of kin;

senior next of kin, in relation to a deceased person, means –

(a) a person who, immediately before the death of the deceased person, was the spouse of the deceased person; or

(b) if there is no person referred to in paragraph (a) or such a person is not available, the deceased person's eldest available daughter or son who is 18 or more years of age; or

(c) if there is no person referred to in paragraph (a) or (b) or such a person is not available, the person with whom, at the time of his or her death, the deceased person had a caring relationship which was the subject of a deed of relationship registered under Part 2 of the Relationships Act 2003 ; or

(d) if there is no person referred to in paragraph (a) , (b) or (c) or such a person is not available, a parent of the deceased person; or

(e) if there is no person referred to in paragraph (a) , (b) , (c) or (d) or such a person is not available, the deceased person's eldest available brother or sister who is 18 or more years of age; or

(f) if there is no person referred to in paragraph (a) , (b) , (c) , (d) or (e) or such a person is not available, a personal representative of the deceased person; or

(g) if there is no person referred to in paragraph (a) , (b) , (c) , (d) , (e) or (f) or such a person is not available, and if the deceased person is an Aboriginal person within the meaning of the Aboriginal Lands Act 1995 , a person who is an appropriate person according to the customs and tradition of the community or group to which the deceased person belonged; or

(h) if there is no person referred to in paragraph (a) , (b) , (c) , (d) , (e) , (f) or (g) or such a person is not available, a person nominated by the Director of Local Government, under subregulation (4) , as senior next of kin;

spouse includes the other party to a significant relationship, within the meaning of the Relationships Act 2003 .

(2)  For the purpose of the definition of senior next of kin in subregulation (1) , a person is not available if the person –

(a) is unable to be contacted, even though all reasonable steps have been taken to do so; or

(b) has declined to act as senior next of kin; or

(c) is, in the opinion of a medical practitioner, unable to perform adequately or competently the duties of senior next of kin.

(3)  For paragraph (d) of the definition of personal representative in subregulation (1) , a coroner may nominate a person as senior next of kin by written notice provided to the person.

(4)  For paragraph (h) of the definition of senior next of kin in subregulation (1) , the Director of Local Government may nominate a person as senior next of kin by written notice provided to the person.

PART 2 - Cremation Permits

4.   Applications for cremation permits

(1)  The senior next of kin of a deceased person may apply, in writing, to a medical practitioner for a permit authorising the cremation of the deceased person.

(2)  The application for a cremation permit is to –

(a) include the following particulars:

(i) the full name of the applicant;

(ii) the residential address of the applicant;

(iii) a declaration that the applicant is the senior next of kin of the deceased person;

(iv) the full name of the deceased person;

(v) the last place of residence of the deceased person;

(vi) the date of death of the deceased person;

(vii) the age of the deceased person at the date of his or her death;

(viii) if known, the name and address of the usual medical practitioner who attended the deceased person before his or her death;

(ix) if known, whether the deceased person had an implanted medical device;

(x) the business name and address of the crematorium where the deceased person is to be cremated; and

(b) be accompanied by a copy of the medical certificate given in respect of the deceased person.

5.   Medical practitioners to refuse certain applications

A medical practitioner must not accept an application for a cremation permit, or grant the application and issue a cremation permit in respect of a deceased person, if the medical practitioner –

(a) is the senior next of kin of the deceased person; or

(b) is related by marriage to a person who is the senior next of kin of the deceased person; or

(c) is a partner or an employee of the medical practitioner who issued the medical certificate in respect of the deceased person; or

(d) was, immediately before the death of the deceased person, a partner or an employee of the deceased person; or

(e) is a relative of the medical practitioner who issued the medical certificate in respect of the deceased person; or

(f) has already issued a medical certificate in respect of the deceased person; or

(g) has a pecuniary interest in the estate of the deceased person.

6.   Consideration of applications for cremation permits

In considering an application for a cremation permit, a medical practitioner may –

(a) with the consent of the senior next of kin, obtain any medical records relating to the deceased person referred to in the application for a cremation permit; and

(b) allow other medical practitioners access to those medical records; and

(c) make any inquiries that the medical practitioner considers necessary to his or her consideration of the application for a cremation permit.

7.   Grant and issue of cremation permits

(1)  After considering an application for a cremation permit under regulation 6 , and subject to this regulation, a medical practitioner may –

(a) grant the application; or

(b) refuse to grant the application.

(2)  A medical practitioner must grant an application for a cremation permit, if, after having examined the deceased person to whom the application relates, the medical practitioner is satisfied –

(a) that a medical certificate has been given in respect of the deceased person; and

(b) as to the accuracy of the cause of death stated in that medical certificate; and

(c) that the death is not a reportable death within the meaning of section 3 of the Coroners Act 1995 ; and

(d) that any implanted medical device of which the medical practitioner is aware has been removed from the deceased person.

(3)  A medical practitioner must refuse to grant an application for a cremation permit unless the medical practitioner –

(a) has examined the deceased person to whom the cremation permit application relates; and

(b) is satisfied as to the accuracy of the matters referred to in subregulation (2) .

Penalty:  Fine not exceeding 20 penalty units.

(4)  If a medical practitioner refuses to grant an application for a cremation permit under subregulation (3) , the medical practitioner must –

(a) report the death of the person, to whom the application for the cremation permit relates, to a coroner or a police officer in accordance with section 19 of the Coroners Act 1995 ; and

(b) notify the refusal to the senior next of kin referred to in the application for the cremation permit.

(5)  If a medical practitioner grants an application for a cremation permit under subregulation (2) , the medical practitioner is to issue a cremation permit to the senior next of kin referred to in the application.

(6)  A cremation permit is to be in a form approved by the Director of Local Government.

PART 3 - Duties of Crematorium Managers and Managers of Prescribed Businesses

8.   Identification of deceased persons

(1)  A crematorium manager must not cremate a deceased person unless the crematorium manager is satisfied, in accordance with subregulation (2) , that the deceased person is correctly identified.

Penalty:  Fine not exceeding 20 penalty units.

(2)  For subregulation (1) , a crematorium manager may be satisfied as to the correct identity of a deceased person if –

(a) there is no discrepancy between the identity of the deceased person –

(i) as shown on the cremation permit or coroner's certificate issued in respect of the deceased person; and

(ii) as shown on the identifying nameplate, inscription or marking attached to the outside of the coffin containing the deceased person; and

(b) the coffin containing the deceased person has come from the premises of a prescribed business; and

(c) the coffin containing the deceased person does not appear to have been opened after leaving the premises of a prescribed business.

(3)  A crematorium manager must refuse to accept a deceased person for cremation if the documentation required under these regulations is incomplete or does not comply with these regulations.

Penalty:  Fine not exceeding 20 penalty units.

9.   Security of deceased persons

(1)  A crematorium manager must ensure that no person opens a coffin containing a deceased person for cremation that has been received by the manager for cremation, unless the opening of the coffin is authorised by –

(a) the crematorium manager; or

(b) the medical practitioner who issued the cremation permit in respect of the deceased person; or

(c) a person authorised to do so in accordance with an order of a coroner.

(2)  A crematorium manager may require a coffin, authorised to be opened under subregulation (1) , to be –

(a) removed from the crematorium for the purpose of the authorised opening; or

(b) taken to the premises of a prescribed business for the purpose of the authorised opening.

(3)  A crematorium manager must ensure that any coffin containing a deceased person for cremation is –

(a) stored in a secure place; and

(b) appropriately identified at all times.

10.   Security of cremated remains

A crematorium manager is to ensure that the cremated remains of a deceased person, recovered from the cremator, are kept separately from the cremated remains of other deceased persons recovered from the cremator.

11.   Storage of cremated remains

Until the cremated remains of a deceased person are dealt with under regulation 12(1) or (3) , a crematorium manager must ensure that the cremated remains –

(a) are stored in an appropriate container; and

(b) are clearly identified; and

(c) are stored in a secure place.

Penalty:  Fine not exceeding 5 penalty units.

12.   Retention and disposal of cremated remains

(1)  A crematorium manager or manager of a prescribed business, who has custody of the cremated remains of a deceased person, must deal with the cremated remains in accordance with any reasonable instructions given to the manager by the senior next of kin of the deceased person.

(2)  A crematorium manager or manager of a prescribed business must retain the cremated remains of a deceased person if –

(a) no instructions, as to the collection or disposal of the cremated remains, are given to the manager by the senior next of kin of the deceased person; or

(b) the instructions, as to the collection or disposal of the cremated remains, given to the manager by the senior next of kin of the deceased person are not reasonable; or

(c) the cremated remains are not collected by the senior next of kin of the deceased person.

(3)  A crematorium manager or manager of a prescribed business may dispose of the cremated remains of a deceased person if –

(a) the crematorium manager or manager of a prescribed business has made all reasonable efforts to contact the senior next of kin of the deceased person; and

(b) a period of 2 years has elapsed from the date of the cremation of the deceased person.

13.   Prescribed records

(1)  For section 12(2) of the Act, the prescribed records that a crematorium manager must keep for all cremations in a crematorium and for all monuments maintained on the premises are –

(a) in the case of a cremation on the authority of a cremation permit, the cremation permit; and

(b) in the case of a cremation on the authority of a coroner's certificate, the coroner's certificate; and

(c) in all cases –

(i) the full name and address of the person who applied for the cremation to be conducted; and

(ii) the date of the cremation; and

(iii) the information recorded in the register in accordance with subregulation (2) .

(2)  A crematorium manager must ensure that –

(a) each cremation is recorded in a register as soon as practicable after the cremation has taken place; and

(b) the disposal or interment of cremated remains is recorded in a register as soon as practicable after the cremated remains have been interred or otherwise disposed of.

Penalty:  Fine not exceeding 10 penalty units.

PART 4 - Powers of Authorised Officers to Collect Evidence

14.   Interpretation

In this Part –

authorised officer means an authorised officer as defined in section 51(1) of the Act.

15.   Collection of evidence

(1)  For determining if the Act or these regulations have been, or are being, contravened, an authorised officer entering any crematorium, cemetery, place or premises, referred to in section 51(2) of the Act, may –

(a) require any person to produce any records, documents or other things for inspection by the authorised officer; or

(b) take extracts from, or make copies of, those records or documents; or

(c) take samples for analysis of those things; or

(d) take into the crematorium, cemetery, place or premises, referred to in section 51(2) of the Act, any equipment or material reasonably necessary for the purpose of the authorised officer exercising a power under the Act or these regulations; or

(e) require any person to give the authorised officer any reasonable assistance that the authorised officer may require.

(2)  If an authorised officer has a reasonable belief that the Act or these regulations have been, or are being, contravened, the authorised officer may seize any records, documents or other things relevant to the offence.

16.   Obstruction of authorised officers

(1)  A person must not obstruct or hinder an authorised officer in the exercise or performance of a power or function under the Act or these regulations.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A person must not –

(a) fail to comply with a lawful request of an authorised officer; or

(b) when requested to do so, fail to produce to an authorised officer any record, document or other thing in the person's possession or under his or her control; or

(c) fail to give any reasonable assistance to an authorised officer when required to do so by the authorised officer.

Penalty:  Fine not exceeding 20 penalty units.

17.   False or misleading statements

A person must not, in giving any information under these regulations –

(a) make a statement knowing it to be false or misleading; or

(b) omit any matter from a statement knowing that without that matter the statement is false or misleading; or

(c) provide a document that the person knows to be false or misleading without informing the person to whom the document is provided of that knowledge.

Penalty:  Fine not exceeding 20 penalty units.

18.   Retention of records by authorised officers

An authorised officer may retain a record, document or other thing seized under these regulations –

(a) for the purpose of investigating if the Act or these regulations have been, or are being, contravened and, if required, for the purposes of any subsequent prosecution; or

(b) for the purpose of an investigation of death under Part 5 of the Coroners Act 1995 .

PART 5 - Miscellaneous

19.   Approval of equipment

(1)  A person must not operate a crematorium unless the crematorium equipment complies with any guidelines issued by the Director of Local Government under subregulation (2) .

Penalty:  Fine not exceeding 20 penalty units.

(2)  The Director of Local Government may, by notice in the Gazette, issue guidelines in respect of equipment used in crematoriums.

(3)  A notice under subregulation (2) is not a statutory rule for the purposes of the Rules Publication Act 1953 .

20.   Savings and transitional provisions

(1)  An application for a cremation permit made under regulation 4 of the Burial and Cremation (Cremation) Regulations 2002 is taken to be an application for a cremation permit made under regulation 4 of these regulations.

(2)  A cremation permit issued under Part 2 of the Burial and Cremation (Cremation) Regulations 2002 is taken to be a cremation permit issued under Part 2 of these regulations.

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 20 June 2012

These regulations are administered in the Department of Premier and Cabinet.